There are enough conferences every year that, if one attended them all, no other work would get done. That said, there is a particularly well put together conference coming up on Thursday, February 9. Electric Power in a Carbon Constrained World will feature some of the leading energy and environmental law scholars today. It is organized around four panels:

Local governments routinely attach conditions, or “exactions,” to development permits in an effort to address the environmental and infrastructural impacts of individual projects. However, presumably to protect landowners from exactions that are either unrelated or disproportionate to the problems caused by their proposed development, the U.S. Supreme Court curtailed the exercise of this power in its conveniently rhyming Nollan and Dolan decisions by establishing a constitutional takings framework unique to exaction disputes. Under this framework, it is the government—as the defendant— who has the burden of proving that the exaction bears both an “essential nexus” to and “rough proportionality” with the development’s impacts.

Several outstanding questions as to the applicability of this stringent standard continue to cloud governments’ use of the exactions tool. The Florida Supreme Court recently addressed two such questions in the matter of St. John’s River Water Management District v. Koontz. The first question—whether the Nollan/Dolan test applies to exactions beyond those that require public occupation of private lands—has been the subject of considerable debate in takings literature. The Florida Court answered this question in the negative, siding with a considerable majority of state and lower federal courts that have addressed the issue. The Court’s reasoning on this issue could serve as fodder for a future post. But the second question—whether the Nollan/Dolan test is applicable at the point in time when an exaction is merely proposed—has received far less attention to date and will serve as the subject here.

In Koontz, a permit applicant sought to dredge and fill wetlands that were part of a designated riparian habitat protection zone. While the Water Management District could have exercised its authority to deny this request, it instead identified several possible exactions that, if accepted by the applicant, could allow for the development to proceed. The applicant, however, refused these proposals, and the government ultimately denied the development request outright. At the appellate level, the developer prevailed on the theory that the government had proposed exactions that amounted to an unconstitutional taking for which compensation is due.

Nearly all of the many lower court applications of the Nollan/Dolan test have addressed final permit approvals. Indeed, prior to Koontz, it appears that in only three instances—one federal district court opinion, one federal circuit court opinion, and in a decade-old dissent from a denial of certiorari authored by Justice Scalia—did members of the judiciary assert that a proposed exaction could, in and of itself, implicate the Takings Clause. And across these three cases, the opinions provide thin and contradictory guidance on the complex questions surrounding whether such a novel claim presents a legitimate takings issue.

The Florida Supreme Court ultimately decided in Koontz that proposed exactions are not subject to the Nollan/Dolan test. (Takings buffs may be interested to hear that the author of the majority opinion in Koontz—Justice R. Fred Lewis—authored a scathing dissent to the lower court opinion that was later affirmed by a unanimous U.S. Supreme Court in Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot. in 2010.) However, it is somewhat surprising that the Court did little to confront the rationale set out in any of the three preceding cases on the topic. It is even more surprising that the Court dedicated only two pages of its opinion to this imposed-versus-proposed issue, and provided little justification for its conclusion. The Court said only that applying the Nollan/Dolan test to proposed exactions would prompt local governments to issue more outright denials “rather than risk the crushing costs of litigation.”

One might contend that applying the same tests to all conceivable exactions, whether they are proposed prior to an outright permit denial or imposed in a final development approval, makes sense. Otherwise, this argument might suggest, property owners would be beholden to the government’s extortionate exaction propositions, lest they side with the empty alternative of an absolute development prohibition. There is an instinctive appeal to the argument that the denial of an application based on refusal to comply with an exaction demanded by the government is indistinct from a permit conditioned on that exaction.

However, there are at least three reasons to suggest that such an approach may amount to an over-simplification of, and an ultimately unsound resolution to, what is in fact a complicated theoretical problem. First, where a proposed exaction is refused or withdrawn, nothing has been "taken" from the applicant that can be protected by the Takings Clause. Second, judicial speculation on hypothetical exactions and their hypothetical economic impacts poses a wholly unmanageable system that could require courts to review countless cases that do not present actual controversies. Third, and arguably most importantly as a matter of legal policy, burdening governmental entities with possible takings liability for statements made during negotiation sessions will place a chilling effect on regulator-landowner coordination.

If you are interested in this topic, I expound on the above ideas in this pre-Koontz article. In addition, Mark Fenster (Florida) and David Callies (Hawaii) are publishing post-Koontz symposium essays on the topic, drafts of which are posted here and here.

The Florida Supreme Court recently denied Koontz’s motion for re-consideration, leaving him until April 3, 2012 to decide whether to file a petition for certiorari with the U.S. Supreme Court. Stay tuned to the Environmental Law Professors Blog for any developments in this important case.

Last night, President Obama delivered his annual State of the Union Address. Like last year, he focused on the potential for unity over energy independence, transition to cleaner energy, and energy infrastructure rather than on addressing climate change. He continued to tie that transition to innovation, construction, and jobs.

However, the tone was somewhat different. Unlike last year, where he did not mention climate change directly, he openly acknowledged partisan divisions with respect to climate change and even energy while trying to find bipartisan ground. The President also spent time discussing the expansion of offshore drilling and natural gas as positive rather than just emphasizing the need to shift towards cleaner sources.

I liked the realism of this shift. One of the reasons I spent time in the aftermath of the BP Deepwater Horizon oill spill exploring the complexity of offshore drilling and oil spill regulation, and principles for moving forward and addressing environmental justice concerns, is because I believe that the desire for energy independence and security will compell us to keep drilling deep in at least the short-to-medium term. Similarly, I think that natural gas is an important transitional energy source because we are not ready to shift dramatically to cleaner sources in the near term.

I do think it's important, though, to think beyond our present constraints. I live in the Midwest, with its massive wind capacity, and was particularly heartened by two experiences I had during my Climate Change and Clean Energy capstone course last semeseter. First, when John Dunlop of the American Wind Energy Association visited us, he emphasized that between on-shore and off-shore wind, we have capacity to more than meet our energy needs and that intermittency is more managable than it is often portrated as being. Second, when we went on a tour of the MISO, the Midwestern regional transmission organization, the operator answering our questions emphasized that they try to get as much wind online as possible. This effort is not motivated by any type of environmental mandate, but out of their mission of reducing cost and maximizing reliability--the wind is cheaper than the more polluting sources. I hope that we can move beyond bipartisanship to use law as a tool for the energy transformation--through a combination of conservation, efficiency, and transitioning sources--that would be a win-win for this country.

I include the most relevant portion of the State of the Union below:

After all, innovation is what America has always been about. Most new jobs are created in start-ups and small businesses. So let’s pass an agenda that helps them succeed. Tear down regulations that prevent aspiring entrepreneurs from getting the financing to grow. (Applause.) Expand tax relief to small businesses that are raising wages and creating good jobs. Both parties agree on these ideas. So put them in a bill, and get it on my desk this year. (Applause.)

Innovation also demands basic research. Today, the discoveries taking place in our federally financed labs and universities could lead to new treatments that kill cancer cells but leave healthy ones untouched. New lightweight vests for cops and soldiers that can stop any bullet. Don’t gut these investments in our budget. Don’t let other countries win the race for the future. Support the same kind of research and innovation that led to the computer chip and the Internet; to new American jobs and new American industries.

And nowhere is the promise of innovation greater than in American-made energy. Over the last three years, we’ve opened millions of new acres for oil and gas exploration, and tonight, I’m directing my administration to open more than 75 percent of our potential offshore oil and gas resources. (Applause.) Right now -- right now -- American oil production is the highest that it’s been in eight years. That’s right -- eight years. Not only that -- last year, we relied less on foreign oil than in any of the past 16 years. (Applause.)

But with only 2 percent of the world’s oil reserves, oil isn’t enough. This country needs an all-out, all-of-the-above strategy that develops every available source of American energy. (Applause.) A strategy that’s cleaner, cheaper, and full of new jobs.

We have a supply of natural gas that can last America nearly 100 years. (Applause.) And my administration will take every possible action to safely develop this energy. Experts believe this will support more than 600,000 jobs by the end of the decade. And I’m requiring all companies that drill for gas on public lands to disclose the chemicals they use. (Applause.) Because America will develop this resource without putting the health and safety of our citizens at risk.

The development of natural gas will create jobs and power trucks and factories that are cleaner and cheaper, proving that we don’t have to choose between our environment and our economy. (Applause.) And by the way, it was public research dollars, over the course of 30 years, that helped develop the technologies to extract all this natural gas out of shale rock –- reminding us that government support is critical in helping businesses get new energy ideas off the ground. (Applause.)

Now, what’s true for natural gas is just as true for clean energy. In three years, our partnership with the private sector has already positioned America to be the world’s leading manufacturer of high-tech batteries. Because of federal investments, renewable energy use has nearly doubled, and thousands of Americans have jobs because of it.

When Bryan Ritterby was laid off from his job making furniture, he said he worried that at 55, no one would give him a second chance. But he found work at Energetx, a wind turbine manufacturer in Michigan. Before the recession, the factory only made luxury yachts. Today, it’s hiring workers like Bryan, who said, “I’m proud to be working in the industry of the future.”

Our experience with shale gas, our experience with natural gas, shows us that the payoffs on these public investments don’t always come right away. Some technologies don’t pan out; some companies fail. But I will not walk away from the promise of clean energy. I will not walk away from workers like Bryan. (Applause.) I will not cede the wind or solar or battery industry to China or Germany because we refuse to make the same commitment here.

We’ve subsidized oil companies for a century. That’s long enough. (Applause.) It’s time to end the taxpayer giveaways to an industry that rarely has been more profitable, and double-down on a clean energy industry that never has been more promising. Pass clean energy tax credits. Create these jobs. (Applause.)

We can also spur energy innovation with new incentives. The differences in this chamber may be too deep right now to pass a comprehensive plan to fight climate change. But there’s no reason why Congress shouldn’t at least set a clean energy standard that creates a market for innovation. So far, you haven’t acted. Well, tonight, I will. I’m directing my administration to allow the development of clean energy on enough public land to power 3 million homes. And I’m proud to announce that the Department of Defense, working with us, the world’s largest consumer of energy, will make one of the largest commitments to clean energy in history -– with the Navy purchasing enough capacity to power a quarter of a million homes a year. (Applause.)

Of course, the easiest way to save money is to waste less energy. So here’s a proposal: Help manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings. Their energy bills will be $100 billion lower over the next decade, and America will have less pollution, more manufacturing, more jobs for construction workers who need them. Send me a bill that creates these jobs. (Applause.)

Building this new energy future should be just one part of a broader agenda to repair America’s infrastructure. So much of America needs to be rebuilt. We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world.

After all, innovation is what America has always been about. Most new jobs are created in start-ups and small businesses. So let’s pass an agenda that helps them succeed. Tear down regulations that prevent aspiring entrepreneurs from getting the financing to grow. (Applause.) Expand tax relief to small businesses that are raising wages and creating good jobs. Both parties agree on these ideas. So put them in a bill, and get it on my desk this year. (Applause.)

Innovation also demands basic research. Today, the discoveries taking place in our federally financed labs and universities could lead to new treatments that kill cancer cells but leave healthy ones untouched. New lightweight vests for cops and soldiers that can stop any bullet. Don’t gut these investments in our budget. Don’t let other countries win the race for the future. Support the same kind of research and innovation that led to the computer chip and the Internet; to new American jobs and new American industries.

And nowhere is the promise of innovation greater than in American-made energy. Over the last three years, we’ve opened millions of new acres for oil and gas exploration, and tonight, I’m directing my administration to open more than 75 percent of our potential offshore oil and gas resources. (Applause.) Right now -- right now -- American oil production is the highest that it’s been in eight years. That’s right -- eight years. Not only that -- last year, we relied less on foreign oil than in any of the past 16 years. (Applause.)

But with only 2 percent of the world’s oil reserves, oil isn’t enough. This country needs an all-out, all-of-the-above strategy that develops every available source of American energy. (Applause.) A strategy that’s cleaner, cheaper, and full of new jobs.

We have a supply of natural gas that can last America nearly 100 years. (Applause.) And my administration will take every possible action to safely develop this energy. Experts believe this will support more than 600,000 jobs by the end of the decade. And I’m requiring all companies that drill for gas on public lands to disclose the chemicals they use. (Applause.) Because America will develop this resource without putting the health and safety of our citizens at risk.

The development of natural gas will create jobs and power trucks and factories that are cleaner and cheaper, proving that we don’t have to choose between our environment and our economy. (Applause.) And by the way, it was public research dollars, over the course of 30 years, that helped develop the technologies to extract all this natural gas out of shale rock –- reminding us that government support is critical in helping businesses get new energy ideas off the ground. (Applause.)

Now, what’s true for natural gas is just as true for clean energy. In three years, our partnership with the private sector has already positioned America to be the world’s leading manufacturer of high-tech batteries. Because of federal investments, renewable energy use has nearly doubled, and thousands of Americans have jobs because of it.

When Bryan Ritterby was laid off from his job making furniture, he said he worried that at 55, no one would give him a second chance. But he found work at Energetx, a wind turbine manufacturer in Michigan. Before the recession, the factory only made luxury yachts. Today, it’s hiring workers like Bryan, who said, “I’m proud to be working in the industry of the future.”

Our experience with shale gas, our experience with natural gas, shows us that the payoffs on these public investments don’t always come right away. Some technologies don’t pan out; some companies fail. But I will not walk away from the promise of clean energy. I will not walk away from workers like Bryan. (Applause.) I will not cede the wind or solar or battery industry to China or Germany because we refuse to make the same commitment here.

We’ve subsidized oil companies for a century. That’s long enough. (Applause.) It’s time to end the taxpayer giveaways to an industry that rarely has been more profitable, and double-down on a clean energy industry that never has been more promising. Pass clean energy tax credits. Create these jobs. (Applause.)

We can also spur energy innovation with new incentives. The differences in this chamber may be too deep right now to pass a comprehensive plan to fight climate change. But there’s no reason why Congress shouldn’t at least set a clean energy standard that creates a market for innovation. So far, you haven’t acted. Well, tonight, I will. I’m directing my administration to allow the development of clean energy on enough public land to power 3 million homes. And I’m proud to announce that the Department of Defense, working with us, the world’s largest consumer of energy, will make one of the largest commitments to clean energy in history -– with the Navy purchasing enough capacity to power a quarter of a million homes a year. (Applause.)

Of course, the easiest way to save money is to waste less energy. So here’s a proposal: Help manufacturers eliminate energy waste in their factories and give businesses incentives to upgrade their buildings. Their energy bills will be $100 billion lower over the next decade, and America will have less pollution, more manufacturing, more jobs for construction workers who need them. Send me a bill that creates these jobs. (Applause.)

Building this new energy future should be just one part of a broader agenda to repair America’s infrastructure. So much of America needs to be rebuilt. We’ve got crumbling roads and bridges; a power grid that wastes too much energy; an incomplete high-speed broadband network that prevents a small business owner in rural America from selling her products all over the world.

With the start of the semester, time for doing "things" like taking an evening out for watching a movie has dwindled. However, just before the holiday season provided ample opportunity to watch movies. It was while watching the trailer for one movie that I realized how the pursuit of environmental law can forever change one's ability to enjoy the mundane. So, here I was watching the trailer for Salmon Fishing in Yemen, with all the romantic cliches, but all I could think of was the environmental impact of introducing a non-native species in a country like Yemen. It also actually made me go and look up the geography and climate of Yemen, which I learnt had mostly desert-like conditions, without any major rivers. Having potentially spoilt your enjoyment of this movie, let me end on a positive note by quoting the Yemenese investor in the movie"...one must have faith..."

It has been nearly one year since a massive tsunami and earthquake shook Japan's nuclear plants. Up until that point nations seriously considered nuclear energy as a good alternative to meet growing energy demands and reduce GHG emissions. Government response to the incident, however, are varied. European nations, particularly Germany, which was planning to expand the life of some its plants has withdrawn such plans.China and India have no plans to scale back on their nuclear expansion program.India is slated to ﻿open one of its largest nuclear power plants in Kudankulum, Tamil Nadu, even though locals (and the Chief Minister of Tamil Nadu) are demanding proper explanation of safety checks from the Prime Minister. An news report (interview) of the issue can be found here. Similarly, in the United States, efforts to cut back on nuclear energy power remain contentious. On January 20, a Vermont District Court judge enjoined the State of Vermont from taking any action to shut down the Vermont Yankee nuclear power plant, after a State Senate vote against renewal of operations at the plant due to safety concerns was challenged. The court found that the Atomic Energy Act preempted State action. A copy of the decision can be found here .

For countries that want to pursue nuclear energy options, the motivation is economic growth. Even Germany, which has scaled back on nuclear energy, is faced with challenges of meeting its energy demands and there are reports that economic slow down in Germany coincides with its new nuclear policy. For countries such as China, India, and the United States, economic concerns govern their decision. Without a comprehensive nuclear safety policy globally, eventual nuclear power expansion appears imminent. What is required then is a close examination of nuclear energy laws, particularly in light of Japan's experience with continuing food contamination and a persisting dissatisfaction with government accountability. It is perhaps time to seriously consider, or reconsider, nuclear safety regulation.

The LSU Law Center recently announced a new student-edited journal, the LSU Journal of Energy Law and Resources. Below please see a short description of the journal. You can learn more about the journal by visiting their website.

The LSU Journal of Energy Law and Resources will explore energy law from a holistic point of view, including the resources used for energy development, changes in technology, and the transactional effects of energy development, both in the United States and abroad. Specifically, the Journal will discuss underdeveloped areas of energy law, such as issues of property, contract, and taxation. By publishing on these topics, the Journal will not only open a channel for areas of scholarship traditionally underdeveloped, it will simultaneously provide practitioners an effective resource in energy law. In addition to providing full length scholarly articles, the Journal will maintain a blog of shorter pieces regarding changes or developments in energy law.

Currently, the LSU Journal of Energy Law and Resources is seeking article submissions for the Journal’s inaugural issue to be published in the Fall of 2012. The Journal welcomes academic articles from both scholars and practitioners.

The U.S. Department of Transportation, the Environmental Protection Agency and the White House recently announced an historic agreement with auto manufacturers that proposes to dramatically increase fuel efficiency for cars and light trucks, and a separate proposal for the first-ever regulations setting fuel efficiency standards for heavy-duty trucks. The new standards will save billions of barrels of oil and reduce greenhouse gas emissions by millions of tons. The collaborative effort behind these significant breakthroughs stands in marked contrast to the divisiveness and gridlock that currently mires much environmental policy.

This year’s Villanova Environmental Law Journal Blank Rome LLP Symposium brings together key stakeholders and decision makers who were involved in crafting the new standards to discuss the law and politics of fuel efficiency. The speakers will explain the process that produced the groundbreaking new fuel efficiency standards, evaluate the factors contributing to the agreement between government and industry and examine the technical, legal, economic and political implications of the new standards.

To register, visit www.law.villanova.edu/events. This program is approved by the Pennsylvania Continuing Legal Education Board for 3 substantive CLE credits. Program registrants who are unable to afford continuing legal course registration fees due to financial hardship may petition for registration fee waiver or discounted program fees. For additional information on the symposium, the general public can email Megan Jacobs at mjacobs@law.villanova.edu.

WHO:

Gina McCarthy, Assistant Administrator for the Office of Air and Radiation, U.S. Environmental Protection Agency

* Does Congress have the authority to approve the Keystone Pipeline despite the Obama administration's disapproval? A new CRS report says yes - under Congressional authority to regulate foreign commerce.